Will the Supreme Court or Rick Perry Stay the Leal Execution?

by Peggy McGuinness

We now know that there is broad agreement that if Texas Governor Perry goes forward with today’s scheduled execution of Humberto Leal, he will be doing so in violation of law. Who has said so? Well, the U.S. government, the U.S. Supreme Court, at least three concurring judges on the Texas Court of Criminal Appeals, a significant number of members of the House and Senate, along with the United Nations, Mexico (and many other states) and, of course, the International Court of Justice. The problem for Leal and others whose death penalty convictions were obtained following a clear and acknowledged violation of U.S. obligations under the Consular Convention is not a lack of clarity about consular law. The problem is the domestic remedy. There are only two institutions remaining that can provide one to Mr. Leal today: The U.S. Supreme Court, if it accepts the very strong argument of Leal’s attorneys and the Solicitor General that the Court should invoke its power under the All Writs Act to stay the execution until the proposed jurisdictional and remedial statute (the Consular Notification Compliance Act) is adopted by Congress, or Governor Perry. Given Perry’s failure to stay the execution of Ernesto Medellin in 2008 — nothwithstanding the official position of the Bush administration to comply with the 2004 Avena decision of the ICJ — there is little about the Leal case to suggest that Perry will change his international law-breaking ways.

Perry’s most likely political calculation on the question is summed up nicely/depressingly by this post by Thomas Lane over at Talking Points Memo, in which he says of efforts by the UN High Commissioner of Human Rights to sway Governor Perry:

International Law professors and Current TV producers probably aren’t going to be voting in the GOP primaries. Looking online at the types of people who may be, the blog “One Old Vet” puts the prevailing sentiment most succinctly: “This is America and Mexican law, as well as other international law, can go straight to hell!” Similarly, a Fox News write-up about the U.N. intervention grins, “Perry apparently doesn’t plan to take his cues from the U.N.”

So, things look fairly bleak for Mr. Leal. Indeed, one might say that if Perry does delay the execution, thus bowing to international pressure, it could be the clearest sign yet that he’s not running for president.

But some things are different today than they were for Medellin in 2008. First, there is the quite stunning concurrence by three judges of the Texas State Court of Criminal Appeals, which explicitly adopts the concurring opinion of Justice Sevens in the Medellin v. Texas decision. Stevens concurred with the majority’s decision in Medellin that the ICJ judgment did not create binding domestic law, i.e., it did not create a remedy. Stevens noted, however, that it rested with Texas (a view Julian Ku enthusiastically endorsed here) to carry out the U.S. international legal obligation to provide the additional hearing ordered by the ICJ in Avena. After concluding that that Texas law constrained them from entertaining his request for the stay, the concurring justices wrote:

This does not mean [Leal] lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant’s execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant’s right under international law. By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass. In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do.

The Board of Pardons and Paroles has not recommended a stay in this case. But with pending federal legislation, there is a stronger argument than in 2008 for the GOP Texas congressional delegation to support Perry in a move to grant a reprieve. It does not appear politically likely, but at least there is a relevant and compelling change in domestic legal circumstances here.

If neither the Supreme Court nor Perry grants a stay, the U.S. will once again be responsible for executing a foreign national in violation of international law. And we can expect even tougher times ahead for American consular and human rights officials trying to convince other states around the world to obey well-established and broadly recognized international law.

15 Responses

Would the fact that the Senator Leahy did not address this case until 14Jun11 with the Consular Notification Compliance Act denote that congress is not that driven to institute laws until they can parlay some political advantage from them. If the administration had addressed this earlier the passage would have been guaranteed with full democratic majorities. Just another case of lack of governance when it is clear that international law has and will be violated.

7.07.2011
at 8:35 am EST Joe Gilmore

I doubt Ranger Rick will grant a stay, he’s refused stays and commutations in even more egregious situations than this.

7.07.2011
at 9:33 am EST M. Gross

Per Joe Gilmore, so goes the US left. Per Peggy, so goes the US right. Welcome to a banana republic.

Best,
Ben

7.07.2011
at 10:32 am EST Benjamin G. Davis

Response: Typical left-wing mob drivel. The left loves criminals & terrorists, and loves the UN, ACLU, moveon, and their wacky utopian dream of a “world government”. The left hates our very foundational documents, our government, and justice system (except when the rules are in their favor. Stand fast, Governor Perry and let’s be rid of this SAVAGE rapist & murderer who committed a HORRIBLE act!

I fail to see the egrigious violation of law. Texas did not prevent him from seeking counsular assistance–the only “violation” the state is guilty of is not conducting a determination upon arrest about whether Mr. Leal was in the country illegally. For his own reasons, he did not disclose this immigration status at the time and now he must–and die–with the consequences of that choice.

7.07.2011
at 2:01 pm EST George

Anyone who uses rebarbative pre- and post-nominals is pushing the proverbial up the hill on the credibility front.

But Joe Gilmore and George are on the money. This is simply not ‘egregious’ in the sense in which 90% of the people who know what that means would typically use it. Yes, it is clear, perhaps, but for many people, the clear breach of a technicality is simply not that big a deal if the overall outcome remains within the bounds of what is broadly perceived as fair.

I think some readers of this site might be surprised at how much of the world would consider Leal’s execution to be within the bounds of what is broadly perceived as fair.

7.07.2011
at 4:34 pm EST [insert here] delenda est

There are two (2) other aspects to consider:
1. Leal was a toddler when he came to the United States. Since he did not seek American citizenship upon his majority, he continues to violate Federal Law. Further, as a Mexican ex-pat living in this country, Leal should be familiar with the concepts of American law vis-a-sis rape and murder.
2. As seen in the recent US v MEX soccer game, even though they reside here in the United States, Mexicans still hold true to their home country. In Leal’s case, as an illegal immigrant to the United States, why did he not request consular support upon arrest? In fact, he didn’t ask.
The State of Texas, a sovereign entity with its own laws, must not back down on this question. Texas law has been followed, Leal was arrested, tried and convicted in accordance with American Criminal Judicial rules. The State of Texas did not have any International input vis-a-vis the Geneva Convention; conversely, unless the Federal Government wants to send US Marshals to physically remove Leal to a Federal Prison, the verdict should stand.

7.07.2011
at 4:50 pm EST SeniorD

delenda est, I’d go a lot further than that. This case is a good example of why “international law” is barely worth the name. In “true” law, there is a tight relationship between meaningful statutory language, cases tried under that language, and rulings that come up with concrete decisions based upon those facts that can be used in future adjudications.

In the various Avena cases, what we really see is a fact pattern that is clearly different than the cases concieved of when the Vienna Conventions were adopted–individuals living illegally in another country who FOR REASONS OF THEIR OWN do not divulge that they are foreign nationals upon arrest. It’s left to the US to try and deal with this situation through its domestic processes.

It is interesting to contrast the Court’s willingness to give Congress more time to reconsider the Voting Rights Act in Northwest Austin Municipal Utility District No. 1 v. Holder: http://joshblackman.com/blog/?p=7523(Quote)

I have lived outside the United States for many many years and consular access is not a trivial technicality – whether one is considered to be legally or illegally in the host country. Not to say that the American consul will do much for you, but it is better than being completely at the mercy of the host country. As Stevens said, Texas has made the problem for the United States by how it approaches these matters – Texas has to fix it. State Department tries to educate the police on these points but obviously in 1995 that was not very advanced. Just comply with the treaty obligation for chrissakes – it is not rocket science.
Best,
Ben

7.08.2011
at 3:47 pm EST Benjamin G. Davis

“The U.S. Supreme Court, if it accepts the very strong argument of Leal’s attorneys and the Solicitor General that the Court should invoke its power under the All Writs Act to stay the execution until the proposed jurisdictional and remedial statute (the Consular Notification Compliance Act) is adopted by Congress”
This is a joke, right? As the 5 sane members of the Supreme Court noted, in Medellin in 2008 the Supreme Court put Congress on notice that, if they wanted States to care about the IJC ruling, they would need to pass a law to that effect.
It’s been three years. No law, even though the Democrats had the Presidency and both Houses of Congress (even for a while had 60 members in the Senate) for two whole years. It is pure delusion to think that Congress is going to get to this issue any time soon.

7.08.2011
at 5:37 pm EST Greg Q

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